Please Note:
The information in this web site is not intended to constitute legal advice or to create an attorney-client relationship. It is also important to note that the information contained in this article may be outdated.
It is very important that you obtain legal advice from an experienced bankruptcy attorney regarding your particular situation. Consultation before you take action will certainly cost you less than what it will cost to fix your unintentional errors.
In general, assets that you own prior to filing for bankruptcy are called pre-petition assets. Some of these valuable assets maybe used to pay those debts you owed before filing bankruptcy, called pre-petition debts. Normally, any assets that you acquire after your bankruptcy is filed are yours, called post-petition assets and your pre-petition creditors cannot take them. By the same token, any liabilities you incur after the bankruptcy was filed, called post-petition liabilities, are not normally discharged in your bankruptcy proceeding. This may change somewhat in a chapter 13 case.
There are situations when bankruptcy is not the best option. Diane will help you determine what other options might be available. But, in the great majority of cases, bankruptcy is the only option left because of the creditors refusal to be reasonable and help you solve your current dilemma. It is her job to help you throughout the entire process and to make sure you understand your rights and the complex legal issues involved with bankruptcy.
Bankruptcy is a very complicated interplay of several laws and should not be undertaken without adequate representation. Do not use document preparers or inexperienced attorneys who do not practice bankruptcy law full time. Most consumer bankruptcy lawyers offer free consultations.
You did not chose to put yourself into this financial situation. Fortunately, you are smart enough to be searching of more information about bankruptcy so that you can make an informed decision. What you may not know is that bankruptcy is a Constitutional right.
Liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings, and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge; I mean, of the characters and conduct of their rulers.
John Adams, Dissertation on Canon and Feudal Law 1765.
Many of you begin our initial discussion with an apology for your current financial situation. Absolutely no apology is necessary. There has been no financial certainty for anyone, including our government, since the founding of our country. So how could you guaranty financial certainty in your daily life? Your situation is affected by circumstances rarely in your control – health, employment, divorce, economy of the Nation, and changes in business policies.
As of 1789 the US Constitution Art. 1, Section 8, Clause 4 empowered Congress to enact bankruptcy law to help all citizens receive a fresh start. The first bankruptcy law was enacted in 1800. Obviously, this option has been seen as a valuable method to protect our citizens. So never feel that you must apologize to me and anyone else for choosing this legal protection.
Please do not hide from reality. No one wants to file bankruptcy. Having said that, and in order to protect your health and peace of mind, along with that of your family, bankruptcy may be your only option. The faster you seek good legal advice from an experienced bankruptcy attorney the less likely you are to make some disastrous, yet innocent, decisions. If anyone tells you that bankruptcy is simple – take a look at this flow chart of basic bankruptcy procedures. We designed a process (this web site) that allows everyone 24/7 hour access to information about bankruptcy. Our web site is working even if we are not. We use short educational videos to educate our clients and an intake form to assist Ms. Drain in reviewing your personal situation. There are no fees for these services. After viewing the videos and talking to Ms. Drain, you will be instructed how to enter your own creditor information on-line. Next, you will meet with Ms. Drain for 2 hours to ask and answer questions, review the documents and plan for the future. Our goal is to keep our fees to a minimum. We invite all our clients to call anytime they have questions.
Do you feel alone? Here is my present to you – watch this wonderful video “Stand by Me” (make sure to turn on your speakers and watch the names and locations of the musicians.) Trust me, you will be glad you took the 3 minutes to watch it.
My goal is to educate you about your options and the process from beginning to end. We also help you plan for your future. Our firm is Committed to Quality, not focused on Quantity. In other words, we treat our clients as individuals, with unique needs. Unlike the TV advertising law firms, we never treat clients like they have entered a used car sales lot. Some law firms refer their clients as “sales” and their staff as “inventory”. They proudly announce to fellow attorneys that they “gross income that month is ….” They never talk about the value of the services that they provide their clients. That attitude is disgusting and will never be tolerated in my firm.
Shays’ Rebellion In 1786, poor farmers in Massachusetts rebelled when creditors came calling during a recession.Engraving from Hulton Archive/Getty Images
This fresh start principle is also set forth in the Bible. According to the Old Testament, every 50th year all debts were to be cancelled. This was known as the “Year of Jubilee”. (Leviticus 25:10-15) Also, every 7th year, creditors were to release their clients from debts. This was called the “Lord’s release”. (Deuteronomy 15:1-2) “If you lend money to any of My people who are poor among you, you shall not be like a moneylender to him, you shall not charge him interest.” (25 New King James Bible) “Restore now to them, even this day, their lands, their vineyards, their olive groves, and their houses, also a hundredth of the money and the grain, the new wine and the oil, that you have charged them” (Nebemiah 5:10,11).
Today, as in 1786, the majority of Americans no longer blame the borrower, but are pointing fingers at the credit card companies and mortgage lenders. Corey Calabrese, a Fordham Law student who is an administrator of the school’s walk-in clinic for debtors at Manhattan Civil Court. Public sentiment is on their side, she added: “For the first time, Americans are no longer blaming the borrower but are looking at the credit card companies.” According to a Quinnipiac University poll in February 2009, 62 percent of those polled blamed mortgage lenders “who loaned the money to people who may not be able to pay it back.” Only a quarter blamed homeowners.
IMPORTANT: You can see from the above engraving our society’s current financial situation is not new to us, nor is the creditor stalking the debt challenged person new. So, first, and most importantly, please understand that there is no reason to apologize or feel embarrassed for having financial difficulties. Everyone has suffered through periods of financial distress. Circumstances change: lost jobs, medical problems, divorce, business failure and/or real property values fall. Each of these situations leave those involved in disastrous financial situations.
Usery - Past and Present
USURY: traced back 4,000 years. But it has always been despised, condemned, restricted or banned by moral, ethical, legal or religious entities. The oldest references to usury are found in religious manuscripts of India, dating back to 2000-1400 BC where the ‘usurer’ is associated with any interest lender. In the Hindu Sutra (700-100 BC) as well as in the Buddhist Jatakas (600-400 BC) there are many references to the payment of interest, along with expressions of disdain for the practice. Vasishtha, a prominent lawmaker of the era, drafted a law that banned the high caste Brahmans and Kshatryas from being usurers or money-lenders. In the second century AD, the term usury becomes relative, meaning that interest above the legal rate could not be charged; that would be a usurious loan.
Creditors must take some responsibility
Very few of us have the ability to completely control the financial part of our lives. Companies fail, jobs are lost, people get sick and families are broken. The creditors are happy to give everyone credit, whether or not they qualify. These creditors have absolutely no regard to the person’s ability to repay the credit. The creditor makes more money when a borrower is late, defaults on a loan, or overdraws the credit limit or bank account. Therefore, that creditor is gambling that they will earn more from borrowers in interest, penalties and additional charges then that creditor will lose as a result of bankruptcy. They are leveraging their losses by giving out as much credit as everyone’s mail boxes can hold. Those same creditors will not work with the a borrower who is suffering a financial set back. That creditor does not care if the borrower has never been late. All that creditor wants is “their money”. Don’t believe me – just ask their collection agents. Today, it is an extremely rare creditor to have any loyalty to their customers.
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